Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.

Refusing treatment and the elderly

Another paramedic, this time from New South Wales, has written regarding withholding and refusing treatment. He writes:

I am a paramedic from NSW. I had a case about a year ago – we were called to a 97 yo male, with psychiatric problems.

The patient refused to eat and stated he “wanted to die as had enough time on earth”. The pt had no mental health history and only had other minor health ailments. The doctor (from the aged care team?) had called us to transport him to hospital. According to the wife, the doctor queried an organic source to him wanting to take his own life.

We did a very thorough history of the patient on scene, called the team who assessed him, but could not get a hold of the person who wanted us to transport him. All of the patient’s vitals were in normal limits and he had no pain. Patient displayed capacity and competency, also scored well on the abbreviated mental test – to which there was no reason to transport him if he did not want too. The only complaint we saw was – he refused to eat and stated he wanted to die – meaning the patient had suicidal intentions. Therefore, we should have used section 20 [of the Mental Health Act 2007 (NSW)] and transported. After lengthy discussions we left him at home, though still nervous of our decision.

Members from the team came back a few hours later. They stayed on scene and made another one of my colleagues transport.

The pt ended up dying a few days later in hospital as he refused to eat or have IV fluids.

I have had this on my mind for the past year. Were the team wrong to force the pt to go to hospital considering his age or were we wrong to disagree with the doctor and leave him at home? Is there an age to when a patient finally has enough of old age and be of sound mind to make that decision?

To start with some legal propositions. Section 20 of the Mental Health Act says:

An ambulance officer who provides ambulance services in relation to a person may take the person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.

The critical issue is that the person must appear to be mentally ill and/or mentally disturbed. These terms are defined in the Act.

“”mental illness” means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms: (a) delusions, (b) hallucinations, (c) serious disorder of thought form, (d) a severe disturbance of mood, (e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d)” (s 4).

A person is mentally ill if they are suffering from a mental illness and “owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary: (a) for the person’s own protection from serious harm…” (s 14). A person is mentally disordered if their “behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary: (a) for the person’s own protection from serious physical harm…” (s 15).

Merely to plan or contemplate your own death does not mean you are mentally ill, and note that suicidal thoughts are not mentioned in the definition of mental illness though I understand they are a symptom that is listed in the DSM-IV (the manual on mental health diagnosis). In Stuart v Kirkland-Veenstra [2009] HCA 15 members of Victoria Police did not detain a man who had been contemplating suicide because they did not believe he was mentally ill. The relevant power (if there was a power) was found in the Mental Health Act 1986 (Vic) s 10. That Act says:

(1) A member of the police force … may apprehend a person who appears to be mentally ill if the member or officer has reasonable grounds for believing that- (a) the person has recently attempted suicide or attempted to cause serious bodily harm to herself or himself or to some other person; or b) the person is likely by act or neglect to attempt suicide or to cause serious bodily harm to herself or himself or to some other person.

Section 8(1A) of that Act says “a person is mentally ill if he or she has a mental illness, being a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory.”

The police were sued for failing to take action under s 10 when, later, Mr Veenstra took his own life. The case went to the High Court of Australia and the claim by the plaintiff, Mr Veenstra’s widow, was lost. The police had spoken to Mr Veenstra who was able to rationally engage with them. In the High Court Chief Justice French said (at [58])

[The police officers] did not think Mr Veenstra was mentally ill. That was an opinion they were entitled to form. The fact that a person has decided to commit suicide may indicate deep unhappiness or despair. It does not mean that the person is mentally ill within the meaning of s 8(1A). Mr Veenstra’s rational and cooperative responses observed by the officers supported their opinion…

To return to the case at hand, the paramedics, my correspondent, assessed the patient;

“All of the patient’s vitals were in normal limits and he had no pain. Patient displayed capacity and competency, also scored well on the abbreviated mental test – to which there was no reason to transport him if he did not want too. The only complaint we saw was – he refused to eat and stated he wanted to die – meaning the patient had suicidal intentions.”

Wanting to die does not equate to being mentally ill. Even if it did then to engage s 20 the patient had to be suffering from delusions, hallucinations, serious disorder of thought form, a severe disturbance of mood and/or sustained or repeated irrational behaviour. We are told that is not the case in which case there was no power under s 20 to transport him to hospital against his wishes.

The fundamental principle at law is that from the time one express capacity to make one’s own decisions, then one is allowed to do that, whether you are 9 or 97. At 97 and without any evidence of mental illness it was not only right (ethically) but obligatory (under law) to respect his wishes. I can’t see, on the facts given, why an ambulance was required. He was not ill or in pain and he didn’t want assistance. A person does not lose capacity because of age alone, one would hope we would in fact recognise that an older person, who has capacity and competence, also has experience and should be allowed to make their own decisions.

The problem is we have no adequate definition of what suicide is. We want to be able to stop apparently healthy young people taking their lives when they appear to have so much to live for, but at the same time the law recognises that personal choice on how we live, and what medical treatment we receive, is paramount. Part of the balance is struck by the current law allowing a person to refuse treatment even if that is necessary to keep them alive, but prohibiting doctors and others taking active steps to end a life. Even so as a community we are prepared to accept that a person who is nearing the end of their life due to a terminal illness is allowed to refuse treatment but we are unwilling to accept that in people who, when it comes down to it, we just don’t think is making the ‘right’ decision.

In a lecture I delivered to Ruth Townsend’s health law and ethics course last year I asked ”Can you find a case where a young, pregnant woman’s decision to refuse treatment was upheld?” (See also 2009 Irish Law Reform Commission Report on Children And The Law: Medical Treatment). Despite the claim by Courts in Australia, the UK, the USA and I’m sure elsewhere, that everyone has a right to choose, and that pregnancy doesn’t diminish those rights, in fact the courts always find a way to say that a pregnant woman isn’t really competent, or informed, or otherwise able to make a decision in the case then before the court. They can’t say ‘pregnant women lose the right to choose’ but practically they do.

Why that is relevant here is because the patient “only had other minor health ailments” so clearly the family, or the doctor, weren’t happy with a decision that at 97 he’d had enough; but why aren’t we allowed to make that decision? In part we don’t want to allow that for a 97 year old because we might then have to allow a 21 year old to make that decision; in part we don’t want to allow it because the family may feel it reflects badly on them (“Why does he want to die? Why wasn’t being with us enough? Why didn’t we make him feel better? He must be mentally ill”). Equally we might understand that wanting to die may in fact be a product of depression and mental illness and we would rather treat the illness than face was it the tragedy of suicide.

Philosophers, medical ethicists and the community have not been able to balance the various competing interests here so it is not surprising that the law also struggles but some principles are clear; in this context they are – competent people, even at 97 can refuse treatment and wanting to die does not equal a mental illness.

Let me then turn to the questions asked:Were the team wrong to force the pt to go to hospital considering his age?
Remembering I have only the facts given above and I’m not a clinician, and assuming that there were no symptoms of mental illness as set out in s 4 of the NSW Act then yes, I think they were wrong to force him to go to hospital. His age is irrelevant. A patient who is competent and has capacity has the right to refuse treatment even life saving treatment. If one can only refuse treatment of limited value any claim to respect patient or personal autonomy becomes meaningless. It is when people are refusing life saving treatment that we can really demonstrate our commitment to allow people to choose for themselves what is the right decision for the.

Or were we wrong to disagree with the doctor and leave him at home?
No, you were not wrong. You had no power to transport without consent. On the facts presented s 20 had no application. To physically restrain and remove someone just because they are 97 not 47 would be an assault. A person does not lose their right to make a choice and their right to be treated with respect and dignity just because they are over 90. You made the right call on the facts as you’ve presented them.

Is there an age to when a patient finally has enough of old age and be of sound mind to make that decision?
Yes, that age is whenever they have the capacity to make a decision. At the moment a child under the age of 18 could be subject to an overriding decision maker, in particular a court; once they are 18 and absent any mental illness, then at least in theory they have the right to chose. No court case has doubted that but each, usually finds a way to say that the decision maker is not competent. Despite the warning in Airedale NHS Trust v Bland [1993] 2 WLR 316 that the law and the courts, and the medical profession, should not make decisions based on a third party’s assessment of the person’s ‘quality of life’ in fact they do that all the time. The law, and society, has a long way to go to resolve those complex issues hence the statement from Airedale NHS Trust v Bland that the law (and community attitudes to end of life decision making) are “both morally and intellectually misshapen”;[1993] 2 WLR 316, 34 (Lord Mustill).